Kenneth A. Foster, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01976069 (E.E.O.C. Apr. 16, 1999)

01976069

04-16-1999

Kenneth A. Foster, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kenneth A. Foster v. United States Postal Service

01976069

April 16, 1999

Kenneth A. Foster, )

Appellant, )

)

v. ) Appeal No. 01976069

) Agency No. 4-G-700-0067-97<1>

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. �621 et seq. The final agency decision was issued on

July 7, 1997. The appeal was postmarked August 2, 1997. Accordingly,

the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in

accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint on the grounds that it states the same claim as that pending

before or that has been decided by the agency.

BACKGROUND

The record reveals that appellant initiated contact with an EEO Counselor

on November 27, 1996. On March 10, 1997, appellant filed a formal EEO

complaint (Agency No. 4-G-700-0065-97) wherein he alleged that he had

been discriminated against on the basis of his age (52) when on November

20, 1996, he was issued a letter of warning for failure to perform the

duties of his position in a satisfactory manner. The agency accepted

the complaint for investigation.

Appellant also filed another formal EEO complaint (Agency No.

4-G-700-0067-97) on March 10, 1997. In that complaint, appellant

alleged that he had been discriminated against on the basis of his age

(52) in the following manner: Appellant stated that he is the only

Manager with mail routes that do not have a regular eight-hour relief

person. Appellant also stated that he is the only Manager that had

an additional two routes added to his territory. Finally, appellant

raised the issue of his November 1996 letter of warning by stating that

a coworker had his letter of warning reduced to an official discussion.

In a final decision dated July 7, 1997, the agency captioned the decision

as relating to Agency No. 4-G-700-0067-97. However, the agency stated

that it was dismissing Agency No. 4-G-700-0065-97 as being identical to

Agency No. 4-G-700-0067-97.

On appeal, appellant argues that he intended that the information

contained in Agency No. 4-G-700-0067-97 be considered as supplemental

information to Agency No. 4-G-700-0065-97, and not as an additional

complaint. Appellant requests that all information be consolidated as

part of Agency No. 4-G-700-0065-97.

In response, the agency asserts that the instant appeal is premature

given that Agency No. 4-G-700-0065-97 was accepted for investigation on

June 13, 1997.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

It has long been established that "identical" does not mean "similar."

The Commission has consistently held that in order for a complaint to be

dismissed as identical, the elements of the complaint must be identical to

the elements of the prior complaint in time, place, incident and parties.

See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).

Upon review of the final agency decision, as well as the comments

submitted on appeal, we find that the complaint which was dismissed

is Agency No. 4-G-700-0067-97, particularly in view of the agency's

contention that Agency No. 4-G-700-0065-97 was accepted for investigation

on June 13, 1997.

We note that both complaints raised the issue of the letter of warning

issued to appellant in November 1996. In Agency No. 4-G-700-0067-97,

however, appellant also raised the issues of being the only Manager who

was assigned two extra routes and who did not have a eight-hour relief

person. Therefore, we find that the two complaints are not identical

except for the issue of the letter of warning. Therefore, the two issues

from Agency No. 4-G-700-0067-97 concerning the extra two routes and no

relief person will be remanded to the agency for further processing.

Finally, we note appellant's contention that he intended the information

contained in Agency No. 4-G-700-0067-97 to supplement his case in Agency

No. 4-G-700-0065-97. Therefore, we find that on remand the agency

should consolidate appellant's two complaints for further processing in

accordance with EEOC Regulation 29 C.F.R. �1614.606.

CONCLUSION

The agency's final decision is hereby MODIFIED. The dismissal of the

issue regarding the November 1996 Letter of Warning is hereby AFFIRMED.

The dismissal of the two allegations concerning the two additional

routes and the denial of an eight-hour relief person is REVERSED.

The two allegations are REMANDED to the agency for further processing

in accordance with the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) days of the date of this decision, the agency shall

notify appellant that his complaints under Agency Nos. 4-G-700-0065-97

and 4-G-700-0067-97 are being consolidated for further processing in

accordance with EEOC Regulation 29 C.F.R. �1614.606.

Thereafter, the agency shall process the consolidated complaint in

accordance with 29 C.F.R. �1614.108. The agency shall issue to appellant

a copy of the investigative file and also shall notify appellant of the

appropriate rights within one hundred twenty (120) calendar days of the

date on which it issues the decision to accept appellant's complaint,

unless the matter is otherwise resolved prior to that time. If appellant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of appellant's request.

A copy of the agency's notice to appellant of the consolidation of his

complaints must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file

a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the

date you filed your complaint with the agency, or your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. If you file a civil action, YOU MUST NAME AS THE

DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your case

in court. "Agency" or "department" means the national organization, and

not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

April 16, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1We note that this case was originally identified with Agency

No. 4-G-700-0065-97; however, upon review, it is clear that the case on

appeal is Agency No. 4-G-700-0067-97.